An issue many people do not consider when they are creating a child custody arrangement is what happens when one parent wants and/or needs to move to another location. Throughout the child’s life, one parent may encounter a job requirement, job opportunity, or family obligation that requires a significant move that will require the modification of the child custody arrangement. Family Code Section 7501 states that parents do not have an absolute right to move with the minor child, and a child’s move may be restrained if it would result in detriment to the child: “A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.” Family Law Code 7501 also reads that even a parent with sole legal and sole physical custody may be restrained from changing a child’s residence, if a court determines the change would be detrimental to the child’s rights or welfare.
Oftentimes, a parent’s intention to move with the minor child results in the parents disagreeing over who the child should primarily reside with and what the modified child custody agreement should be. As such, California courts have specific factors to determine what is in the best interest of the child.
California courts look at several factors when considering a parents request to move the minor child. These factors are known as the LaMusga factors and are derived from the case Marriage of LaMusga (2006), 32 C4th at 1078, 12 CR3d at 359-360. Knowing the factors the court will consider in deciding whether to grant a parent’s request for a minor child’s move away and modify a custody order is crucial. It can help set expectations, calm emotions and sometimes even work towards a compromise with their co-parent.
In addition to the normal considerations taken by the court in deciding custody orders, when considering a parents request for a minor child’s move away, the court must consider what is in the best interest of the child. While both parents feel that what they want is what is best, the court considers the following factors to determine what they feel is truly best for the child.
LaMusga states, in any move-away request, the court considers all relevant factors deciding whether a change in custody would be in the child’s best interest. Among the factors considered when determining whether a child may be relocated are:
- the children’s interest in stability and continuity in the custodial arrangement;
- the distance of the move;
- the age of the children;
- the children’s relationship with both parents;
- the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests;
- the wishes of the children if they are mature enough for such an inquiry to be appropriate;
- the reasons for the proposed move; and
- the extent to which the parents currently are sharing custody.
- The Child’s Interest in Stability and Continuity in the Custodial Arrangement: In other words, the court will look at the current child custody and visitation schedule to see how much the move would disrupt it. The court often does not like to change the status quo for the child if such a change would be a determinant to the child.
Additionally, if the non-custodial parent is seeking to prevent the child from moving, there must be a significant change in circumstance such that a custody change would be in the best interest of the child. The change must be so substantial that it overcomes a custodial parent’s presumptive right to relocate pursuant to Marriage of Burgess (1996) 13 Cal. 4th 25, 37-38 and Family Code 7501.
- The Distance of the Move: This factor is important because the court is considering how disruptive the move will be for the child. Facts such as how far the move is, how difficult visitation with the non-custodial parent will be, and how the costs associated with travel for visitation with the child will be paid are all important considerations.
- The Age of the Child: Generally speaking, older and younger children have different parenting needs. For example, older children may have a strong bond with their caregivers that can withstand longer absences, while younger children are still forming bonds with their caregivers and need more consistent and structured parenting time. and have different developmental needs than older children. This is not always the case, however, and each child and family bond is different.
- The Child’s Relationship with Both Parents: Each parent-child relationship is unique, and the court will consider specific evidence about how the child lives and interacts with their parents. Some considerations may be how bonded the child is to the parent and whether extended periods away from the parent would be detrimental to the child?
- The Relationship Between Parents: The court looks to the parents’ ability to communicate and cooperate effectively, their willingness and ability to put the interests of the child above their individual interests, and how likely the moving parent is to be supportive and assist the relationship between the non-moving parent and the child.
- The Wishes of the Child: The court may consider the wishes of the child if they are mature enough to ask for their opinion. There is no requirement the court inquire of the child what their wishes are, however, and it may be beneficial for minor’s counsel to be appointed to ensure the child’s wishes and needs are being properly considered.
- Reason for the Move: The reason for the move is an important factor because the court is considering whether the move may be beneficial or detrimental to the child. For example, the court may consider it important whether the move is because the parent has a great job opportunity in another state, or whether it is because the parent simply does not want to live where they are currently at.
- The Extent to Which the Parents are Currently Sharing Custody: The court will consider how the move will affect the child’s ability to see each parent on a consistent basis. For example, if the move changes the child’s routine from seeing the non-moving parent from every other week to only during certain holidays, the move may not be in the best interest of the child.
Each child and family dynamic is unique, and there are many other potential considerations the court may take into account when deciding whether a move away is in the best interests of the child. These considerations could be:
The Social Impact of the Move on the Child: The court does not often want to remove the child from their structured norms and status quo. As such, the court will consider the impact of removing the child from his or her established social circles, community, and friendships. One consideration here may include how much family outside the parents the child has in each location, and how often they spend time with those family members.
The Impact on the Child’s Education: Removing a child from school in the middle of the school year or proposing to move a high school junior across the country may not be best for the child’s education, and the court will consider these kinds of issues in its analysis of the situation.
Move away cases are notoriously difficult to get granted by the court because of the many factors involved, and the court often does not want to disturb the status quo of the child. Requests to relocate with a minor child can be highly emotional, contentious, and exhaustively litigated. This is understandable as both parents are potentially facing a significant change to their custody time with their child. Having someone on your side that understands the factors considered by the court in these matters can make a big impact on your case.